ONTARIO COURT OF JUSTICE
DATE: 2022 06 15 COURT FILE No.: 20-2255 Windsor, Ontario
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
ERNEST GYAMFY
Before: Justice Shannon L. Pollock
Heard on: April 26, 2022 and May 31, 2022 Reasons for Judgment Released on: June 15, 2022
Counsel: Sue Szasz and Andrea Harris........................................................ Counsel for the Crown Sandra Kimberg.......................................................................... Counsel for the Defendant
Introduction
Pollock J.:
[1] The defence seeks a ruling that the Applicant’s section 8 Charter right has been breached, submitting that a tracking warrant issued to track the movement of a cellular phone with phone number 226-757-3566 and the search warrants authorized to search “the vehicle of” the Applicant, a black 2019 Nissan Rogue with Ontario plates CKDL859, “the residence of” the Applicant at 305-350 Church Street in Windsor, Ontario and “the residence of” the Applicant at 38-550 Sandison in Windsor, Ontario were unreasonable searches as the warrants were not facially valid. The Applicant seeks to have the evidence seized excluded pursuant to section 24(2) of the Charter. In the alternative, the Applicant seeks leave to cross-examine the affiant on seven (7) areas which they have detailed in their factum.
[2] The Respondent has conceded that there is a basis for the court to grant leave to the Applicant to cross-examine the affiant on two (2) of the areas requested by the Applicant. On the other areas, the Respondent opposes the application to cross-examine. The Respondent takes the position, however, that there is no basis for the Court to determine that the tracking warrant and search warrants lack facial validity, that they are valid and that the Application ought to be dismissed.
[3] The tracking warrant was authorized on October 6, 2020. The information to obtain (ITO) has been vetted. It discloses that the affiant relied upon one (1) confidential source, police data checks and physical surveillance in seeking to obtain the warrant.
[4] The search warrants were issued and executed on November 24, 2020. The ITO has been vetted. The affiant relied upon the same source, physical surveillance and tracking data in seeking to obtain the warrant. Illegal substances, a loaded firearm, money and paraphernalia was located.
Section 8 – General Principles on Reviewing Warrants
[5] As the reviewing justice, a court must look at the Information to Obtain in its entirety. It is the totality of the information which must be considered in an assessment of whether the warrant could have issued.
[6] Warrants are presumed to be valid. As stated by the Court of Appeal for Ontario in R. v. Sadikov at paragraph 84: “The reviewing judge does not substitute his or her view for that of the issuing judge. The standard is whether there is sufficient credible and reliable evidence to permit a justice to find reasonable and probable grounds to believe that an offence has been committed and that evidence of that offence would be found at the specified time and place of search.”. The Court went on to say: “Said another way, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the warrant could -not would -have issued.”.: R. v. Sadikov, 2014 ONCA 72
The Tracking Warrant and Warrant for Transmission Data Recorder
[7] Section 492.2(2) of the Criminal Code states that a justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.
[8] Section 492.2(1) of the Criminal Code states that a justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed against this or any other Act of Parliament and that transmission data will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain the transmission data by means of a transmission data recorder.
The Information Contained in the ITO – The Tracking Warrant
[9] The information contained in the ITO to obtain the tracking warrant for a cell phone with phone number 226-757-3566 reveals that the affiant was relying on confidential source information, police data checks and physical surveillance. The confidential source information came from one (1) source who had an over four (4) year informant/handler relationship with the Windsor Police Service. The physical surveillance was of virtually no assistance in the investigation and information provided to the issuing justice. Police data checks performed were able to provide photographs of the Applicant, physical descriptors, several phone numbers (none of which were the one provided by the source and sought in the tracking warrant), addresses (one of which was one for which a search warrant was ultimately sought and issued) and information regarding an October 2019 contact with police during which the vehicle being driven by the Applicant, a rented Honda Accord, was seized.
The CI Information: The Debot Factors – The Tracking Warrant
[10] When relying on confidential informant information to justify a search the court must engage in an assessment of that information. The Supreme Court of Canada in R. v. Debot outlined the factors for that consideration stating: “First, was the information predicting the commission of a criminal offence compelling? Second, where a "tip" originating from a source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? Each factor does not form a separate test. Rather, it is the "totality of the circumstances" that must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two.”.
Was the CI information credible?
[11] The information contained in the ITO discloses that Source A has been a confidential informant for the Windsor Police Service for over four (4) years. The ITO reveals that there have been seven (7) occasions where Controlled Drugs and Substances Act warrants were executed based on information provided by Source A and the persons named were arrested and drugs were seized. Further disclosed is the fact that at least three (3) times there was information provided by Source A regarding outstanding warrants for persons who were all arrested where the source advised they could be located. The ITO discloses that Source A has provided information regarding criminal offences on at least one (1) occasion which led to an arrest and charge. Further, the source has provided other information which was verified through other means.
[12] The ITO reveals that there have been three (3) occasions when Source A was wrong regarding items to be found. On those occasions other items were found and the persons named by Source A were charged.
[13] Source A’s motivation, whether that person is a drug user and what, if any, criminal record of the source has been entirely vetted from the ITO.
[14] There is information important to an assessment of credibility of this source which has been entirely removed from the vetted ITO, that being the source’s motivation to provide information to police and their criminal record, if any. However, there is other sufficient information disclosed upon which the issuing justice could assess the credibility of the informant. There has been a lengthy informant/handler relationship with the police during which the reliability of this source has been tested on multiple occasions. The information is enough upon which a determination of credibility can be made. The source is credible.
Was the CI information compelling?
[15] The information provided by Source A and disclosed in the ITO includes the following as it relates to the suspect: the nickname “Jones”, a physical description, that “Jones” was travelling from Toronto to Windsor to sell fentanyl, that he would bring at least a couple ounces of fentanyl to Windsor from Toronto, phone numbers used by “Jones”, that “Jones” drove different vehicles that were rentals and that in the month of October 2019 the male was pulled over by police and the Honda rental car he was driving had been towed. Further, Source A had made first-hand purchases of fentanyl from “Jones” on more than one occasion. Source A identified “Jones” as the Applicant from a photograph shown to him by the affiant.
[16] This information is specific and detailed and goes beyond the type of information one would have by mere rumour or gossip. The information was compelling.
Was the CI information sufficiently corroborated?
[17] As stated by the Supreme Court of Canada in Debot, it is not necessary for police to corroborate each detail in an informant’s tip, so long as the sequence of events actually observed conforms sufficiently to the anticipated pattern to remove the possibility of innocent coincidence. The level of verification required increases where the informant’s credibility is in question, or where fewer details are provided and the risk of innocent coincidence is greater. R. v. Debot (1989) 13 SCC at paragraph 70.
[18] The affiant performed police data checks in order to attempt to corroborate information provided by Source A. Those data checks revealed that the Applicant had a current listed address in Windsor and previous addresses in Toronto and Windsor. There were three (3) phone numbers listed on Versadex which had area codes for the Greater Toronto area. The affiant learned that the Applicant had a contact with Windsor Police on October 3, 2019 during which he was operating a rented 2013 grey Honda Accord which was towed due to a stunt driving allegation. There was a photo and description of the Applicant which was consistent with the description provided by Source A. The Applicant was determined to be an accused for a 2014 possession for the purpose of trafficking charge from the Peel Regional Police Service. The Applicant was found to lack a criminal record and have contacts with police of which two were drug related.
[19] These data checks provided corroboration of the physical description of the Applicant, the fact that he had connections to Toronto and Windsor and was connected to addresses in both of those jurisdictions, that he had prior drug related contacts with police and the fact that he had been driving a rented Honda when stopped by police in October of 2019 when that vehicle was towed.
[20] These facts provide sufficient corroboration of the information provided by the confidential informant so as to remove any possibility of innocent coincidence.
Conclusion on the Tracking Warrant and TDR
[21] As already stated, what is required pursuant to section 492.1(2) of the Criminal Code is reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence.
[22] The confidential informant information was credible, compelling and corroborated. It included first-hand purchases of fentanyl from a male which police investigation led officers to believe on reasonable and probable grounds was the Applicant. The information and investigation also provided grounds to believe that the Applicant was connected to Toronto and Windsor and was bringing fentanyl from Toronto to Windsor to sell. Tracking the cell phone usually carried by the Applicant would assist in the investigation of the offence.
[23] The police did not attempt to corroborate the telephone number provided by the Applicant. Data checks revealed three (3) separate phone numbers for the Applicant none of which were either of the phone numbers the source had provided for him. In October of 2019 Source A had provided phone number 226-350-4290 as the number being used by “Jones”. In June of 2020, the phone number referenced in the tracking warrant was provided. In September of 2020, the source confirmed “Jones” was still using that number to arrange his drug transactions.
[24] The affiant was an officer with nine (9) years of policing experience and had been assigned to the Drugs, Intelligence, Guns and Surveillance Unit (DIGS) for approximately two and a half (2.5) years. The affiant attested that, from her experience as a drug investigator, she was aware that is common practice among drug dealers to switch phone numbers periodically to avoid electronic surveillance by police. There were three (3) numbers found to be associated to the Applicant in the police data checks and two (2) others provided by the source.
[25] As stated in Debot, it is the "totality of the circumstances" that must meet the standard of reasonableness. Each detail provided by in an informant’s tip need not be corroborated.
[26] Although there was no corroboration of the specific phone number the police sought to track, it is the totality of the circumstances which must be considered. In looking at the totality of the circumstances, there was sufficient credible and reliable evidence to permit the issuing justice to find reasonable and probable grounds to believe that an offence had been committed, that the Applicant was using a cell phone with phone number 226-350-4290 and that tracking the phone would assist in the investigation.
[27] Given the finding that the standard required for section 492.1(2) has been met, it goes without saying that the lower standard of reasonable suspicion required under section 492.2(1) would be satisfied and that transmission data would assist in the investigation of the offence.
The Search Warrants
[28] This court must answer the question of whether the issuing justice could have determined that the ITO as redacted and the reasonable inferences that could be taken from it gave rise to a credibly-based probability that the Applicant had illegal substances and other items sought in each location, that being the Nissan and each of the residences, on the date the warrants were issued and executed.
The Information Contained in the ITO – The Search Warrants
[29] The affiant swore one ITO to support the issuance of warrants for the three (3) locations. When the warrants were first submitted for review, they were rejected by the Justice of the Peace. The reason provided was that there was no evidence that Source A has observed that the things to be searched for are in the places to be searched, at this time. The Justice of the Peace questioned how the police knew that the items to be searched for were at either place at the time.
[30] Evidence was added to the ITO and it was resubmitted to the same Justice of the Peace who then issued the warrants.
[31] Information which formed the basis for the initial tracking warrant was included in the search warrant ITO. There was also further evidence by way of surveillance which was conducted with the assistance of the phone tracker. Also, source A had provided further information since the tracking warrant application.
[32] Since the tracking warrant had issued on October 6, 2020, the source had made a further purchase of fentanyl from the Applicant. Within twenty-four (24) hours of the ITO being sworn, the source had provided information that they had purchased fentanyl from the Applicant after the last time he was in Toronto, that he had just come back from Toronto and was “loaded up”. The cell phone tracker indicated that the Applicant had been in Toronto from November 19 to the 23rd. The ITO was sworn on November 24, 2020.
[33] Cell phone tracker data indicated that the Applicant had attended at 350 Church Street as soon as he returned to Windsor from Toronto. He remained there for approximately twenty (20) minutes before going to the Sandison Street residence. Officers had observed the Applicant engage in activity which the affiant believed to be consistent with drug trafficking on the evening of November 23, 2020 after leaving the residence on Sandison. This conduct had been observed on previous occasions as well. Tracking data revealed that almost every night while in Windsor, the Applicant stays at 38-550 Sandison Street.
[34] Police spoke to the building caretaker at 350 Church Street and learned that the Applicant was previously living at 350 Church Street but was now only visiting regularly. Although he did not have a formal tenancy agreement he had taken over the apartment when a friend moved out and was responsible for the rent.
[35] The affiant, an experienced officer and drug investigator, outlined her belief that some drug traffickers use “stash” locations to store their product. It was her belief that the Church Street address was being used as a “stash” location by the Applicant.
[36] Surveillance from November 23, 2020 revealed that the Applicant was operating a black Nissan Rogue. A Hertz Canada representative advised police that the vehicle was rented to Mesach Wellington whose address and phone number were both connected directly to the Applicant. Vehicles being driven by the Applicant had been used in the observations made by police during surveillance which were believed to be consistent with drug transactions.
The CI Information: The Debot Factors – The Search Warrants
Was the CI information credible?
[37] The Source who provided the information in relation to the ITO for the search warrants is the same source as that of the tracking warrant. I have already made a determination that the source was credible.
Was the CI information compelling?
[38] I have already determined that the information provided by the source leading up to the issuance of the tracking warrant was compelling. The information provided after that and included in the ITO for the search warrants was less detailed and specific than the original information. It did, however, include information of a further first-hand purchase of fentanyl from the Applicant.
Was the CI information sufficiently corroborated?
[39] The police conducted surveillance and used the tracking data to further the investigation. The surveillance conducted between October 19 and November 23, 2020, and the tracking data corroborate information provided by the source in the following ways:
i) the Applicant was observed operating rental vehicles; ii) the Applicant was seen engaging in conduct consistent with drug transactions on multiple occasions; iii) the conduct consistent with drug transactions was observed to take place in public places; iv) the Applicant’s driving was observed to be consistent with counter-surveillance techniques; v) the tracking data revealed that the Applicant was travelling back and forth between Toronto and Windsor and in the time-frame attested to by the source.
[40] As provided for in Debot, weaknesses in one (1) factor may be made up by strengths on the other two (2) factors. Although the information provided by the source for the issuance of the search warrants was not as compelling as the information provided before the tracking warrant was issued, it did build upon that information. Further, I have determined the source to be credible and the level of corroboration to be high. These strengths make up for any weakness in the compelling nature of the information.
Conclusion on the Search Warrants
[41] I conclude that the ITO as redacted and the reasonable inferences that could be taken from it gave rise to a credibly-based probability that the Applicant had illegal substances in each location, that being the Nissan and each of the residences, on the date the warrants were issued and executed.
[42] The confidential informant information was credible, fairly compelling and corroborated. It included first-hand purchases of fentanyl from a male which police investigation led officers to believe on reasonable and probable grounds was the Applicant. The surveillance and police investigation connected the Applicant to both residences and the vehicle. Tracking data suggested he was at the Church Street location upon his return from Toronto. Tracking data showed the Applicant residing at the Sandison Street address. He was seen driving the Nissan the day prior to the execution of the search. Previous surveillance showed the Applicant driving to and engaging in conduct which was believed to be consistent with drug transactions from a motor vehicle. The Applicant was seen leaving from and returning to the Sandison Street address when these transactions occurred. A male driving a vehicle associated to the Church Street address was seen with the Applicant in his vehicle the day before the warrant was issued at a time when conduct that the police believed was consistent with a drug transaction occurred. The source had very recently provided information that the Applicant was working with other people in Windsor.
[43] The affiant was an officer with nine (9) years of policing experience and had been assigned to the Drugs, Intelligence, Guns and Surveillance Unit (DIGS) for approximately two and a half (2.5) years. The affiant attested that, from her experience as a drug investigator, she was aware that is common practice among drug dealers to keep their product at a “stash” location.
[44] All of this leads to the conclusion that, on the basis of the reliable information contained within the ITO, the issuing justice could have granted the authorization in respect of each of the three (3) locations.
[45] The Application challenging the facial validity of the warrants is dismissed.
Leave to Cross-Examine the Affiant
[46] The Applicant seeks leave of the court to cross-examine the affiant of the warrants, Constable Medeiros, on seven (7) areas as follows:
a) the true nature of the affiant’s relationship with the claimed confidential informant; b) whether this relationship began as a confidential informant relationship which evolved into an agency relationship during the course of the investigation or whether the status of the claimed CI was always that of a police agent; c) any issues surrounding the recording of such relationship by a handler and the protocols regarding such a relationship; d) the identification procedure employed in October 2019 when the CI identified the Applicant as Jones; e) clarification of the CI’s tip regarding how often Jones travels to Toronto; f) clarification of the Mr. Kong’s statement regarding the regularity of the Applicant’s visits to 350 Church; and g) the interpretation of the tracking data from November 23, 2020.
[47] The Supreme Court of Canada in Garofoli tells us that “Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the preconditions to the authorization, as for example the existence of reasonable and probable grounds”.
[48] The Crown takes no issue with the cross-examination as it relates to points b) and g).
[49] As it relates to point d), “the identification procedure employed in October 2019 when the CI identified the Applicant as Jones”, it appears from source notes that the photograph was shown to the source on the same day as the tip containing the information upon which the affiant acted to obtain the photograph which was used for the identification. The Applicant seeks to cross-examine the affiant on how she had a photograph on hand and whether the source was steered towards the Applicant. It is clear from the ITO that the source was only shown one (1) photograph. I fail to see how a determination of how the officer had the photo in her possession assists in any determination this court must make.
[50] As it relates to point e), which is “clarification of the CI’s tip regarding how often Jones travels to Toronto”, there is conflicting information between the ITO and the officer’s notes on this point. Cross-examination will be allowed to clarify the information provided by the source.
[51] Dealing with point f), which is “clarification of the Mr. Kong’s statement regarding the regularity of the Applicant’s visits to 350 Church”, the Applicant points to the fact that the officer’s statement in the ITO adds the words “consistently” and “regularly” to statements made by Mr. Kong who is the caretaker at the Church Street address. These words relate to the Applicant’s status as a resident and/or visitor of the Church Street address. Given that the affiant did not audio or video record this conversation and that an official statement was not taken from Mr. Kong until after the warrants were issued and executed, the clarifying information can only be obtained from the affiant or Mr. Kong himself. It is the affiant who relied on the information in the ITO. Cross-examination will be allowed to clarify the information provided by Mr. Kong. Questions can also be asked on the reasons there was no recording of this information obtained. This information is relevant to the strength of the Applicant’s connection to this address.
[52] I fail to see how point a) is any different than point b) which the Crown has already conceded. Point c) relates to “any issues surrounding the recording of such relationship by a handler and the protocols regarding such a relationship” and is relevant to the issue of whether the source was acting as a confidential informant or a state agent. Cross-examination will be permitted but care will be taken to ensure these questions are not such that they will expose areas that could lead to possible identification of the source.
[53] In conclusion, I have determined that cross-examination will be permitted as it relates to areas identified as b), c), e), f) and g) as the Applicant has demonstrated it is necessary to enable the Applicant to make full answer and defence. There is a reasonable likelihood that the proposed cross-examination on these areas would assist in determining whether the grounds existed for the issuance of the warrant.
Released: June 15, 2022 Signed: Justice Shannon L. Pollock